Bandwagon, August-September 1953

Bandwagon, August-September, 1953. Note: Only some articles are included in this online edition. Illustrations are not included. The Circus Historical Society does not guarantee the accuracy of information contained in the information in these online articles. Information should always be checked with additional sources.

Abandonment Test Fixes Ownership Of Shelved Titles

The problem of show titles is of tremendous interest to every showman. Who owns the title? Can it be imitated? Does it have a value? Does it possess good will? In the amusement business it is quite apparent that a title can have value which sometimes exceeds the value of the physical assets.

One great circus in making arrangements to lease railroad cars from the government found that its physical assets were not sufficient to warrant the loan required. The government held that the tents were mere cloth, the seats were only lumber, the animals had a limited life and the performers exhibited their art only under contract. However, the officials held that the show possessed an asset of far greater value than its physical properties. And that asset was its title. The title was of sufficient value, they decided, to warrant the loan required to obtain the cars.

Thus, similarity in names does become important because confusion could very well affect the value of the title. In other court actions, the play, "Two Orphans," was held to be affected by another play of a similar name, but "Charlie's Aunt" was held not to be affected by the title, "Charlie's Uncle." The name of Christy's Minstrels was held by a court to have value.

Similarity In Names

Suppose John Jones Circus & Brown Bros. Enormous Shows has been a household name in the territory it plays; then along comes James Smith Circus & Jones Bros. Great Shows. Is there such a confusion in the titles that the customers will go to one thinking that they are visiting the other?

Good will has been defined as "the probability that the old customers will resort to the old place." This definition has been expanded to embrace that fine opinion which customers have for a show identified by a particular name and the likelihood that they will continue their admiration for it. A judge defined good will as the advantage or benefit which is acquired by an establishment beyond its mere value and in consequence of public patronage and encouragement which it receives from habitual customers.

The amusement business is vastly different from ordinary commercial activities because the circus, for example, sells nothing tangible. The patron carries away nothing except a memory which is either pleasant or unpleasant. If it is pleasant, the circus has created by its performance an element of good will which is vital to its continued success. If an imitator presents a less entertaining performance, the similarity of titles would undoubtedly affect the good reputation of the circus which the patron believes he is attending.

General Rule Quoted

Relief often has been granted because of infringement of a trade name, including those, such as show titles, which are not used in connection with manufactured articles. The general rule has been stated as follows:

"When a person or business corporation has assumed the name of some other firm or corporation in the same line of business, or has adopted a name which closely resembles that of a business rival previously established, that the business of the latter is liable to be diverted and the public deceived on account of it. Thus, it has always been recognized as within the power or jurisdiction of a court of equity to restrain such person or new company from conducting business under the name assumed to the detriment of the older company ...."

The point boils down to whether or not the purchaser of a ticket is deceived. It is the function of the courts to prevent the public from being deceived in dealing with one concern in the belief that it is another.

Unused Titles Considered

There is another situation which is quite important. Suppose that the circus represented by a title has ceased to exist. The title is on the shelf. Another individual, probably of the some or similar name, produces a show having a title nearly equivalent to the original. Certainly the name of the shelved circus, because of its past reputation, does linger in the memory of former patrons. Therefore, the imitator profits by the reputation of a show no longer in actual existence.

The problem is one of abandonment by the original user.

Abandonment is the giving up of ownership whereby the thing given up ceases to be the property of any person. It can then be picked up by the first taker. Abandonment results only when there is an intention to part with the ownership, and it must be voluntary.

Prohibition Parallel

During prohibition a number of brands of whisky were forced off the market by reason of the law. Upon repeal, various individuals attempted to appropriate the old brand names on the theory of abandonment. Almost uniformly, the courts held that there was no intent to abandon, the original owners of the brands retained ownership.

In an amusement title, it is quite obvious that in many cases it is the intention of the owner to return to the field when conditions permit. He does not permanently abandon the title; there is no intention to do so. Therefore, another individual assuming the title, even tho the show is not on the road, undoubtedly would face litigation.

There must be an intent to part permanently with the right to the title, otherwise there is no abandonment. Only when the intention to abandon and relinquish possession of the title is clear does the abandonment become complete.

Time Not Only Factor

Time is not an essential element of abandonment. Mere lapse of time and non-use, accompanied by no other element of intent, generally has been held not to constitute abandonment. However, non-use and lapse of time are facts to be given weight as governing intention to abandon. For example, if the owner of a title fails to assert any claim to it, this probably would be indicative of intent. Each case, of course, must depend upon its own circumstances. In most cases, the question of intent to abandon is to be ascertained by the jury from a consideration of all the facts.

In 1909 Ringling Bros.' Circus sued Sells-Floto, endeavoring to halt the use of the Sells name, which Ringling claimed thru its ownership of the Forepaugh-Sells title. The U. S. Federal District Court in Denver held that the Sells Floto Circus could use the name because Willie Sells, adopted son of one of the original Sells brothers, had been associated with the Sells Floto show. However, the court held that Sells Floto no longer could use the picture of the original Sells brothers.

Forepaugh, Howes

The season of 1911 was the final time of Forepaugh-Sells Circus toured. The title was not used from then until 1935, when it was added to the Hagenbeck-Wallace title. Obviously, its use indicated an intention to continue a claim to the title.

Howe's Great London Circus title was used regularly for many years to about 1880. Thereafter, it was used at intervals by various managements. In 1908, Jerry Mugivan maintained that the title had been abandoned, and he assumed use of it.

The Howe's title was last used in 1923, when it was used on a two-car show, apparently by rental from Mugivan's American Circus Corporation. Howe's Famous Hippodrome Show was the title used in 1952 by Arthur Sturmak. Again, there is some indication of abandonment.

In 1937 the title of Ringling's Barnes-Sells Floto circus was expanded in some instances to Al G. Barnes, Sells Floto & John Robinson Combined Circuses. It is reported that this was done to protect Ringling's claim to the John Robinson title.

Copyright Act Applies

A title applying to a traveling amusement enterprise crossing State lines undoubtedly could receive protection under the Service Mark Provision of the Copyright Act of 1946. In reporting the sale of his circus property recently, B. C. Davenport described the Wallace Bros.' title as a copyrighted holding.

It may be inferred that a title is a precious possession to be protected by all proper means from those who might endeavor to profit from its good reputation.

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Mills Bros. Holds Memorial For Dan Rice at Girard

Girard, PA. - One of the reasons Mills Bros. Circus was anxious to play Girard, on Thursday, July 30, '53, was because it is the stamping grounds of America's immortal clown and showman, Dan Rice.

It was the first circus to play the town in 26 years and, just before noon, staged a special memorial tribute to Rice at the statue he erected in the public square, a stone's throw from the old Rice winter quarters. The statue erected by Rice was the first put up in the U. S. in memory of Civil War dead. Although at the time there was federal objection to an individual donating such a statue, the impressive memorial, contrary to government regulations, somehow ,'mysteriously" had Rice's name inscribed on it as doner and these words remain today.

Burma, queen elephant of the Mills herd and nationally-famous GOP mascot, laid a wreath on the statue while band leader Joe Rossi played tops. Oral tributes were paid Rice, and circusdom in general, by Mayor Ransom E. Drury, County Commissioner Fred Lamberton, circus owner Jack Mills, editor Walter Jack of the "Cosmopolite," newspaper originally founded by Rice and used by him politically in his unsuccessful bid for the U. S. presidential nomination; the Rev. Robert Homer of Universalist Church; and Coco, Jr., son of England's most famous clown, Coco, who, heading Mills Bros.' troupe of English clowns who attended in a group, paid England's tribute to America's most famous clown.

The Optimist Club, also represented at the historic ceremony, sponsored Mills Bros.' Girard performances, both to near capacity audiences, and netted themselves a profit of approximately $1,000.

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